AMENDMENT TO IMPROVE DNA RETENTION FOR SCOTTISH POLICE.
Amendments to the Criminal Justice Bill will seek to end a loophole that currently prevents police retaining DNA and fingerprint evidence where an alleged offender accepts a prosecution offer of a direct measure (e.g., a fiscal fine, compensation order, or work order).
Under the current legislation DNA or fingerprints can only be retained where there is a criminal conviction or the accused is charged with violent or sexual offences. The rules for retaining DNA were last amended in the Police, Public Order and Criminal Justice (Scotland) Act 2006.
SNP MSP Stewart Maxwell has today signalled his intention to lodge amendments to close the loophole after reviewing evidence given in response to a Scottish Government consultation and discussing the issue with Justice Secretary Kenny MacAskill.
In response to the consultation ACPOS replied: “The acceptance of an offer of disposal by the Procurator Fiscal should equate to a conviction and forensic samples should be retained in line with current procedures.”
SPSA responded: "SPSA consider it would be proportionate to retain forensic samples in relation to those persons arrested and subsequently issued with an Fixed Penalty Notice"
The proposal in the Government consultation also had the support of the Scottish Police Authority Conveners Forum.
Mr Maxwell, a former Minister for Communities said:
“There is a delicate balance to strike in retaining DNA between supporting the work of the police and protecting human rights.
“Scotland has been rightly praised for attaining that balance, however there is a loophole which needs to be closed.
“There is clear guidance that people found guilty of criminal offences will have their DNA and fingerprints retained. However where people accept direct measures such as fines or work orders DNA and fingerprints currently can not be kept. I want to see that changed.
“I believe that when those who have been accused of crimes accept direct measures such as fiscal fines or work orders they are also accepting their guilt. In these cases DNA or fingerprints taken by the police should be treated exactly the same as if they had received a criminal conviction.
“Retaining DNA and fingerprints from people who accept direct measures will help police identify those who re-offend or develop a pattern of offending - without impacting on human rights concerns.
“This bill is still at an early stage, however having reviewed the evidence and looked at the responses to the Government’s earlier consultation on this issue I will be bringing forward amendments to close this loophole.”
More information on this news story,
1. Letter to Kenny MacAskill
Kenny MacAskill
Cabinet Secretary for Justice
St Andrews House
Regent Road
Edinburgh
EH1 3DG
Retention of Forensic Data and Alternatives to Prosecution
Dear Kenny,
As you are aware, the forthcoming Criminal Justice and Licensing (Scotland) Bill includes provision for the extension of police powers relating to the retention of fingerprint and DNA data.
Under existing legislation, any fingerprint or DNA data which have been obtained from an offender can be retained indefinitely where there is a criminal conviction. However, a loophole exists where such data must be destroyed in circumstances whereby an alleged offender accepts a prosecution offer of a direct measure (e.g., a fiscal fine, compensation order, or work order) as an alternative to prosecution in the criminal courts.
I would like to seek your support for my call to lodge an amendment which closes this loophole, since the Bill as introduced does not contain provisions on the issue. I would advocate the proposal which was put forward in the recent Scottish Government consultation paper on the acquisition and retention of DNA & fingerprint data that:
“DNA and fingerprint samples taken from persons arrested or detained on suspicion of having committed an offence and who subsequently accept an offer by the procurator fiscal of a fiscal fine, compensation order, combined order or work order should be retained indefinitely, in the same way as they are in respect of persons convicted of an offence.”
I am aware that responses to the Scottish Government consultation on this issue were somewhat divided. However, I believe that such measures would greatly enhance public protection and improve the law in relation to the retention of such data. It seems to me that the acceptance by a suspect of a fiscal direct measure as an alternative to prosecution in the criminal courts is an acceptance of responsibility for any alleged crime.
If you are supportive, I would appreciate any guidance you can provide on the wording for a suitable draft of the proposed amendment.
Yours sincerely,
Stewart Maxwell MSP
2. Use of Direct Measures – Offences include
* riotous behaviour while drunk in licensed premises, such as a pub or club;
* Vandalism;
* breach of the peace;
* Destroying or damaging someone's property on purpose (known as 'malicious mischief').
* Possession of controlled drug (18%);
* Theft
* Assault
3.Responses to the Government consultation can be found at:
http://www.scotland.gov.uk/
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